Enumerating the Particulars: Five Lawless Judges Ignore the Constitution

I recently heard former U.S. Solicitor General Ted Olson say that Chief Justice John Roberts’ opinion that ObamaCare is a “tax” and constitutional conflicts with the “Direct Tax Restrictions of the Constitution.” Publius Huldah, writing at Grumpy Opinions, explains that conflict, lays out the sole purposes for which Congress is authorized to tax, and how the five lawless judges “ignored” the “enumeration of particulars:”

In effect, they repealed Clauses 3-16. In a nutshell, the Lawless Five asserted that Congress and the President may do whatever they want to us. Just call it a “tax”.

She lists each Clause, 3-16, and it’s “enumerated powers” (Clauses 1 and 2 are the taxing power, 3-16 are the “particulars.”

Add to this short list of enumerated powers; the “housekeeping powers” itemized in the paper linked here; the salaries authorized by Art. I, §6, cl. 1; Art. II, §1, next to last clause; Art. III, §1, cl. 1, and others on the civil list; together with the Amendments addressing civil rights; and you have the sole purposes for which Congress is authorized to levy and collect taxes, borrow money, and spend money for the Country at Large.And this is precisely what James Madison, Father of Our Constitution, says in Federalist Paper No. 41 (last 4 paras).

PUBLIUS: Madison addresses the objection that:

“…the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” (4th para from end).

PUBLIUS: Madison says one would be grasping at straws to stoop to such a silly “misconstruction”:

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare’.” (3rd para from end)

“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity…” (2nd para from end)